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Lead to control

Control of witness during cross-examination is so important that the most basic advice is to
not lose it. Control is maintained when only close and leading questions (or most of them at
least) are asked so that the witness is limited to answering only either yes or no.

How to lead? Beginners usually do it by prefixing their questions with "is it fair to say that
…" or, "is it correct to say that …" But the shortest and easiest way is for the examiner is to
just state what he wants the witness to say. Then, to make it a question, he just adds
variations of "correct", "true", "right", etc. For instance, "you read your affidavit before you
signed it, correct?"

With practice, the examiner will eventually gain sophistication. He just makes the statement
then raises the inflection of his voice at the end. Since he is expected to ask questions, the
court stenographer instinctively adds a question mark at the end of his statement. Example:
"you read your affidavit before you signed it?" "You understood it?" "You did not protest?"
"You received the payment?"

Notice that the questions become more pointedly effective, as if on cadence, when they are
asked this way.

Going around objections

A question on cross examination that may appear objectionable for being irrelevant may still
be allowed if you know how to argue based on a different ground. In other words, choose
your battles; don't get trapped in your opponent's objection and, by reflex, confront it head-
on. You will oftentimes win an objection battle by sidestepping the ground for the objection
and raising an entirely different ground for the question to be allowed.

For instance, a witness testifies on direct examination that he was able to listen in to a
conversation between 2 people who are 5 meters away from him. Next question: where was
he while the conversation was going on? Answer: he was at his desk in the office, working.

On cross, if you ask him what kind of documents he was working on at the time, it may be
objected to as irrelevant, that is, whatever the contents of the documents may not be
relevant to the issues of the case. The objection may also be that it is improper cross
because the contents of the documents the witness was working on was a subject not
covered by the earlier direct exam.

But, if you respond that the question is intended to test the credibility of the witness, to test
his capacity to observe what he said he observed at the time, the court will usually direct
the witness to answer. If you fight the objection with an argument on the relevance of the
documents to the fact in issue (whether or not the conversation took place and what it
was), or that your question covers a subject mentioned in the direct examination when the
witness said he was working at his desk, the chances of getting the question in may be a lot
slimmer. But, as it is, a witness' credibility is always in issue, so that questions testing it
generally cannot be ruled as irrelevant.
Invading personal space: a cross exam tip

Wouldn't you want to affect the composure of a witness on cross-examination, not only by
your question, but by your action as well? I don't mean shouting at the witness. What I
mean is subtle ones - like standing close to him when asking a question.

Try this. When the witness does not give you a simple and straighforward answer to a
simple and straighforward question, don't ask the judge for help; just repeat your question
again, word for word. If the witness still insists on giving a non-answer (those long-winded
statements that doesn't really answer anything), ask it again, word for word, this time
phrased slower to give it emphasis.

The third time time you repeat the question will usually be enough to make the witness
answer as he soon realizes he'll only be making a fool of himself if he does otherwise. But, if
he still does not, ask him if he understood your question. If he says yes, calmly and slowly
ask him to repeat your question. When he does, and he does in your satisfaction, ask him to
answer it. Remember that, during the cross, you have the power to ask the question; as
long as your questions are allowed by the rules, the witness can't refuse to answer, no
matter how embarassing it may be to him. So, use this power.

An objection that it is already "asked and answered" can easily be waved off: first, because
asked and answered questions are allowed during cross to test a witness's credibility;
second, your question was not really answered, so the objection is improper. If the
objection is that you are "badgering the witness", why, you are calm and composed, and
your question is reasonable as the witness is not giving responsive answers, so how is it
that you are "badgering"?

When you ask the witness to answer the question that he repeated, stand in close to him,
looking him in the eye. Notice that he will shift in his seat and will most probably avoid your
gaze. He will look defensive and may even get angry. But he will answer your question just
to get you away from him. I've done this and got this very result.
This was because you've invaded a personal space, and for most people, this space is
sacred. When you move in "too close for his comfort", the witness feels violated. He could
"fight"; but, since you have the power during the cross, his response will be "flight", backing
down and submitting to your will by answering your question. Curiously, it is said that
"criminals seem to have a larger personal space than the rest of society, which also appears
to extend in a parabolic arc behind them. Hence criminals are constantly looking over their


Another effective way to affect a witness on cross-examination is to pause, to just

momentarily stop asking questions and just look the witness in the eye.

Here's my experience:

When a witness lies or exaggerates on the stand, it usually shows in his demeanour. These
telltale signs are mostly subtle and sometimes even imperceptible: shifting in the seat,
avoiding your eyes, lowering of the voice, swallowing before answering, and generally
showing signs of discomfiture and lack of confidence in his answer. In my experience, the
most common is an answer that hedges, and when you press further, the witness answers
in a long narrative but unresponsive way, usually preceded by "it's like this (then proceeds
to answer lengthily)," or "to tell you the truth, what happened was … " or "what I meant
was ..." These essentially demonstrate that the witness is no longer sure of his answer, or
at the very least, is not confident of it.

Let him talk and don't interrupt - listen to the answers and look for the inconsistencies. In
most cases, the witness will just bury himself with these narrative answers. As he finishes,
just look him in the eye but be silent, as if you are asking questions silently. In my
experience, he will continue talking, further burying himself. Then rephrase or paraphrase
his answers and ask the witness to confirm them.

If you have the means, then demonstrate his mistake, lie, inaccuracy, or exaggeration by
asking short questions that pick on the inconsistencies. He may continue answering in long,
narrative, non-answers. Don't look to the judge for help; just repeat the questions that
were not answered. Eventually, the judge himself will step in to admonish the witness to
just answer your questions.

Be brief and substantial

We are prone to making a big fuss about something not so big, believing that if we compile
a critical mass of them, we will be able to dent the witness' testimony on direct.

Better to focus your attention on 2 or 3 substantial points, rather than wasting it on several
minor points which will only damage your credibility: it will make you appear as if you have
nothing substantial on the witness, that's why you are harping on insignificant details. Brief,
simple and substantial: those should be your guideposts.

Asking cross-examination questions on trivial matters also serves to alienate the judge, who
may view your cross-examination as a total waste of his time. Note that when you rise to
cross-examine a witness, the judge (and even those who are just watching the proceedings)
invariably expects nothing less than a fight between you and the witness. If your questions
do not touch the heart of the case, or of the witness' testimony, he will feel that you've let
him down and treat you accordingly. And that's definitely not good for you: nobody wants a
hostile judge.
There’s neither a need to browbeat a witness nor to twist his arm during cross-examination.
In fact, a familiar analogy is Aesop’s story about the sun and wind arguing who's stronger
between them. We all know how that story ends.

When we cross-examine, we forget that when we ask a question, we should actually want
the witness to answer it. Yet, when the witness answers, we usually interrupt to tell him
sternly to "just answer yes or no." Worse, if the witness had already answered, we even
turn to the judge for help, asking him to "please strike out the answer of the witness
because it is unresponsive and to admonish him to just answer yes or no." Unfortunately,
most judges do not like it when they are ordered around by counsel. So: "motion denied,
the answer will remain on record."
7 tips on practising questioning skills

1. Forget that you are a lawyer. Testimony, to be clear and memorable to the judge must
use plain and simple language. Lawyer talk serves no purpose but to confuse;

2. Read up on light novels, magazines or newspapers and take note of the words they use.
Reading the instructions on appliance manuals is particularly helpful since these are
designed to explain and instruct, using clear, vivid and plain language. A relative of manuals
are recipe books. Owing also to their purpose of explaining and instructing, cookbooks use
plain and simple English;

As you read, try turning the sentences into questions. For instance, let's take this sentence
which I lifted from an appliance manual: "When you disconnect a cable, pull on its
connector or on its pull-tab, not on the cable itself." We can turn this sentence into
questions by asking "what should you do when disconnecting a cable?" "When disconnecting
the cable, what should you pull instead of the cable itself?" Why should you not pull the
cable itself when disconnecting it?" "What will happen if you pull the cable itself when
disconnecting it?"

3. Watch talk show hosts on TV interviewing their guests. Watch how Larry King, David
Letterman and Jay Leno do their interviews and you'll see what I mean. They ask non-
leading questions, questions that emphasize something, follow-up questions, and even
those that draw humor (yes, it would not hurt, and in fact, it usually helps if you sometimes
inject humor into an otherwise drab narration). Then, practice by asking your own follow-up
questions, consciously noting the words you use.

4. Watch trials like this one on the internet or TV. See how the tone of voice varies, how the
pace and cadence is maintained, what words are used to make the testimony as vivid as

5. Engage in more conversations in English; listen and ask questions. Be connscious of the
way you ask your questions and listen to the answers. Are you getting the answers to the
questions that you are asking? When you don't, it is mostly because your question is
defective. As a wise man once said, asking the right questions is halfway to getting the right

6. Read every transcript that you can get ahold of. See if you can understand what the
witness's story is, and if not, critique it, see how you can improve it, and practice aloud how
you will ask your questions. If it is your own transcript, ask an associate to read it and tell
you if he understands it. Let him circle and mark the questions that are vague to him, or
which did not get quite the right answers. Be ruthless to yourself.

7. Finally, there is only one rule in honing trial skills better than practice: more practice. But
make it a correct practice. There is clearly no point in spending time and energy practising
when what you are practising will not only not result to improving your skills, but worse, to
making it worse.

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